And medical malpractice technical appraisal all think that he may have died of penicillin allergy.
The day after the patient's death, Li Huazhen was criminally detained by Liunan District Public Security Bureau of Liuzhou City on suspicion of illegal medical practice, and was arrested. He was sentenced to fixed-term imprisonment of 10 years in the first instance. Li Huazhen court of second instance quashed the original judgment. On September 25th, 20001year, Liunan District People's Procuratorate withdrew the prosecution on the grounds that the facts and evidence changed, and decided not to prosecute two days later. Li Huazhen was released after being detained for 435 days.
On May 10, 2002, Li Huazhen filed a state compensation claim, and on September 26th, Li Huazhen was arrested again.
Based on the above facts, I think:
1. Li Huazhen does not constitute the crime of illegal medical practice.
The first paragraph of Article 336 of the Criminal Law stipulates that a person who has not obtained the qualification of a doctor illegally practices medicine, and if the circumstances are serious, it constitutes the crime of illegal practice of medicine. According to the law, the subject of the crime of illegal medical practice only refers to those who have not obtained the qualification of doctors. If you are a qualified doctor, there is no problem of illegal medical practice. According to the available data, Li Huazhen is a doctor in Xi 'an Township Health Center in Liucheng County, Liuzhou City, which shows that Li Huazhen is qualified to practice, so Li Huazhen is not the subject of the crime of illegal medical practice.
Second, whether Li Huazhen abides by the place and scope of practice registration is only whether the administrative violation has nothing to do with crime.
Paragraph 1 of Article 14 of the Law on Medical Practitioners in People's Republic of China (PRC) stipulates that after registration, doctors can practice in medical, preventive and health care institutions and engage in corresponding medical, preventive and health care businesses according to the registered practice place, practice category and scope.
The first paragraph of Article 2 of the Interim Measures for the Registration of Doctors' Practice has also made the same provision. In accordance with the above provisions, medical practitioners should practice in their registered practice places in addition to supporting agriculture, consultation, advanced studies and academic exchanges.
According to the available materials, Li Huazhen is a doctor in a township health center, and his registered place may be in his township health center. However, from June 1996 to July 19, 2000, Li Huazhen was "employed" in the staff hospital of Liuzhou Shipping Corporation. Since it is impossible to see from the existing materials whether Li Huazhen has registered the change, there are two possibilities:
First, Li Huazhen changed its registered place from township hospitals to staff hospitals, so Li Huazhen's behavior is completely legal and should be protected by the Law on Medical Practitioners.
Second, Li Huazhen has not changed its registration. According to Article 19 of the Interim Measures for the Registration of Doctors, Li Huazhen is "not allowed to practice medicine", but Li Huazhen has been practicing medicine. Therefore, Li Huazhen's behavior violated the Interim Measures and the Law on Medical Practitioners. His behavior is illegal and should be subject to administrative punishment.
What needs to be pointed out in particular is that illegality and crime have completely different connotations. The concept of modern criminal procedure and the provisions of China's criminal procedure law require strict principles of a legally prescribed punishment for a specified crime, that is, those who have no explicit law are not guilty and those who have no explicit law are not punished. Therefore, even if Li Huazhen does not practice medicine in accordance with the registered place and scope of practice, it does not constitute the crime of illegal medical practice.
Therefore, we say that no matter where Li Huazhen's registered practice is, his behavior will not affect the constitution of the crime of illegal medical practice. In this case, Li Huazhen should not be regarded as "the crime of illegal medical practice" because of his different places of practice registration.
Three, Li Huazhen can claim compensation from the state.
If a person who has no criminal facts is wrongly arrested, the victim has the right to compensation according to Article 15 of the State Compensation Law.
In this case, on September 25th, 20001year, Liunan District People's Procuratorate decided not to prosecute Li Huazhen. According to the provisions of Articles 142 and 140 of the Criminal Procedure Law of People's Republic of China (PRC), non-prosecution in China can be divided into three types: statutory non-prosecution, discretionary non-prosecution and non-prosecution due to insufficient evidence. In the above three cases, it is only necessary to legally not prosecute (that is, under certain conditions, it constitutes a crime but the law does not pursue it). Judging from the available materials, Li Huazhen does not belong to the statutory non-prosecution situation of "committing a crime under legal circumstances without being investigated by law", so Li Huazhen has the right to demand state compensation.
Four. Arrest again
Can a person who has not been charged be arrested again for his original behavior? The answer is yes! But there is only one condition: finding new facts and evidence is enough to overturn the original judgment!
Is it possible for Li Huazhen to be arrested again in this case? There is this possibility, but I personally think this possibility is very small, because:
This case is a simple case with simple facts and evidence. There is only one most important condition that affects the establishment of this case: whether Li Huazhen is a medical practitioner. If Li Huazhen is a medical practitioner, it does not constitute the crime of illegal medical practice (but if the work is seriously irresponsible, resulting in the death of the patient, it can constitute the crime of medical accident); If Li Huazhen was not a medical practitioner, Li Huazhen should not have been released on September 27th, 20001year!
From the above analysis, we can draw a conclusion: when Li Huazhen was released, the case should have been found out, and Li Huazhen should not be arrested on suspicion of "illegal medical practice", because the simple case of this case has been investigated by the public security organs → arrested by the procuratorial organs → examined and prosecuted by the procuratorial organs → filed a public prosecution → tried by the court of first instance. In particular, the defense of the public prosecutor and the defense lawyer in the trial → the review of the facts by the court of first instance → the judgment of the court of first instance → the review by the court of second instance in the appeal trial. In such a long period, Li Huazhen and his attorney's factual statements and investigation and evidence collection are not considered, but only the layers of "checkpoints" that the public, procuratorial and legal organs have to go through. Such a simple case should have been discovered in this careful examination. Therefore, it is unlikely that "new facts and evidence" will appear whether it constitutes the crime of illegal medical practice.
Is it possible for Li Huazhen to be arrested on suspicion of medical malpractice? The only possibility is that there is a new saying about the patient's death: "Dr. Li Huazhen was seriously irresponsible in his practice". However, it is hardly "serious irresponsibility" to conduct penicillin treatment and skin test for an acute low-level patient, nor is it "serious irresponsibility" for Li Huazhen to handle every patient's request for home visits.
Why was Li Huazhen arrested again?
Are asking for state compensation-I personally think!
To sum up, I think Li Huazhen does not constitute the crime of illegal medical practice, and Li Huazhen has the right to demand compensation from the state! There is no point in arresting Li Huazhen again!
When a doctor is in trouble, it will be the beginning of people's life and health can not be guaranteed!
It's time to defend the rights of medical students!